The men who would be Durham DA

Three men are seeking to become Durham’s District Attorney, an office that has seen its last two elected occupants – Mike Nifong and Tracey Cline – removed because of professional misconduct. The Durham News asked three questions of each candidate. Their replies, with biographical data, are below:

Three men want to become Durham’s district attorney, an office that has seen its last two elected occupants – Mike Nifong and Tracey Cline – removed for professional misconduct.

After Cline’s removal, former Superior Court Judge Leon Stanback was appointed to serve out Cline’s term. He chose to return to retirement rather than run for election to a full term.

Stanback’s chief assistant, Roger Echols; former assistant DA Mitchell Garrell; and Durham attorney Brian Aus are Democrats, with the winner in the May 6 primary (and a June 24 runoff if necessary) going onto the general election Nov. 4. No other political party has a candidate for district attorney this year.

In Durham the district attorney has a staff of more than 30, including 18 assistant DAs; the salary is set and paid by the state, currently $127,737 according to the N.C. Conference of District Attorneys.

BRIAN AUS

Occupation: Attorney at Law concentrating in trial and appellate practice

Born: Aug. 17, 1954

Education: BA, biological sciences, Rutgers College, 1977

MSPH, UNC-Chapel Hill, 1979

JD, UNC-Chapel Hill, 1985

Endorsement: Friends of Durham

Q: In the past seven years two Durham DAs have been forced to resign. Another case of apparent misconduct by a former prosecutor (in the 1991 Darryl Anthony Howard murder conviction) has just come to light. What are you going to do to inspire public confidence in the district attorney’s office?

A: I will be the face of law enforcement in this county. The district attorney’s office will no longer have the mindset that it is reactive to issues that concern us and instead will be proactive. To that end, I will be the point man for the office and I will be personally responsible for meeting and working with our citizens’ groups, religious leaders and civic leaders in combating crime while respecting the rights of everyone. I will go to the schools to instill in our children the idea that education and civility is to be valued as opposed to gang-banging. I will work with the School Board to eliminate out-of-school suspensions, which only reward bad behavior and feed the school-to-prison pipeline. There will be no need for “liaisons” designated from my Office to deal with some new ad hoc group, because I will be the liaison and the groups already exist in Durham – they are just waiting to be used.

There will be no such thing as “good enough for government work” when it comes to performance by the district attorney’s office or law enforcement agencies. Our job is not merely to get convictions, but to assure that justice is done for all, regardless of race, gender or social class, as there is no value in a conviction procured by unethical or unprofessional conduct. The district attorney’s staff therefore will be highly trained, professional, ethical, compassionate and transparent in their actions. I will oversee and train my staff to assure that any misconduct such as alleged in the Howard case does not occur. I will personally discuss and attempt to solve investigative and training issues with the sheriff and chief of police. The DA’s office will be present at major crime scenes to assess the evidence when it is fresh and not merely rely on written reports. I will completely reorganize the district attorney’s office to make it responsive to the needs of law enforcement and efficiently utilize court time to the benefit of all.

Q: Last year, the District Attorney’s office requested three SBI investigations of deaths involving officers of the Durham Police Department. Will you open to the public the results of any such future investigations into Durham law-enforcement agencies? Why, or why not?

A: It is imperative that results of investigations be released, for without transparency in the criminal justice system, there is no public trust. This does not mean that every facet of an investigation may be released, as it could improperly affect any potential jury pool, may run afoul of state personnel privacy laws or may simply be irrelevant to the investigation and only harm the innocent. It also is important to keep the public up to date on the progress, or lack of progress, in these investigations. Silence only causes mistrust, which has been the problem with Durham’s criminal justice system for years.

Q: Please describe one specific event in your legal career that influenced your decision to run for district attorney.

A: There is no single event that causes me to run. Durham has been my home for 35 years. My late wife and I have been civic-minded even before I began to practice law 29 years ago. My son Erik attended and graduated from the Durham Public Schools system. For almost a decade, I have watched the criminal justice system in Durham become non-responsive to the public safety needs of our community and our choices to run the office continue to represent the same mindset. I cannot bear to endure this anymore and know we can do better.

Q: In the past seven years two Durham DAs have been forced to resign. Another case of apparent misconduct by a former prosecutor (in the 1991 Darryl Anthony Howard murder conviction) has just come to light. What are you going to do to inspire public confidence in the District Attorney’s office?

A: I will work with attorneys and other agencies when issues of innocence in disposed cases are brought to the office’s attention. We will investigate all issues and give attorneys access to files to make sure all convictions were obtained legally. I will also seek to engage the community through appointing a staff member to be a community liaison and by creating a community advisory board. I would take these measures so that we can be more responsive to the public and the community as well as to get a sense of how crime, law enforcement and prosecution affect individual communities. I would also seek ways to educate at-risk youth and provide positive alternatives to criminal involvement through the community advisory board.

Q: Last year, the district attorney’s office requested three SBI investigations of deaths involving officers of the Durham Police Department. Will you open to the public the results of any such future investigations into Durham law-enforcement agencies? Why, or why not?

A: I will open results of officer involved investigations to the attorney for the victim’s family and to the victim’s family. I will determine whether or not to release the results, totally or in part, of investigations to the public on a case by case basis after consultation with the SBI and the attorney general’s office. Some of the factors this decision would be based on would be the possibility of future litigation, the existence of legally protected information in the results and the feelings of the victim’s family.

Q: Please describe one specific event in your legal career that influenced your decision to run for district attorney.

A: I do not believe there is one specific event in my career that influenced me to run for district attorney. My career as a whole has led me to this point. As a career prosecutor, I have enjoyed the intense casework of an assistant district attorney. However, I have also enjoyed the responsibility of being a supervisor, administrator and decision-maker. As a supervisor, I believe that part of my duty is to make the job of those I supervise as easy as possible so that they can be as productive as possible so that we can maximize our service to the community.

MITCHELL GARRELL

Occupation: Attorney

Born: Dec. 5, 1955

Education: BA, political science, UNC-Chapel Hill, 1991

JD, UNC-Chapel Hill, 1994

Q: In the past 7 years two Durham DAs have been forced to resign. Another case of apparent misconduct by a former prosecutor (in the 1991 Darryl Anthony Howard murder conviction) has just come to light. What are you going to do to inspire public confidence in the District Attorney’s office?

A: I would agree that there has been a loss of confidence in the criminal justice system here in Durham. This was apparent to me before the reaction to the death of Jesus Huerta, but I was shocked at the number of people who immediately jumped to the conclusion that the police department had assassinated this young man; clearly many in our community are prepared to believe the worst when it comes to the criminal justice system.

I believe that the most immediate source of this distrust are the circumstances of the removal of our last district attorney from office. Ms. Cline engaged in a concerted and extended attack on our Senior Resident Superior Court Judge Orlando Hudson. Among her charges, contained within motions filed in court, was that Judge Hudson had repeatedly “raped” victims. She continued to file these motions even after being ordered by more than one Superior Court Judge to cease and desist unless she had evidence to support her charges.

The prevention of such a loss of trust is the very reason that there are established procedures such as filing a complaint with the Judicial Standards Commission (to be confidential until and unless substantiated) and the appellate process, available for such serious charges. I will not always agree with every judge’s rulings, but I will respect the judicial system and abide by the laws and procedures available when disagreements as to rulings arise. The removal of Ms. Cline from office has not fully restored the trust lost during this period of attack; there are still those in the district attorney’s office who fully and publicly supported Ms. Cline in her attacks, and nowhere has there been the public admission of the seriousness of the mistakes made, much less the actions required to heal the damage done. One of my opponents was hired by Ms. Cline during the height of the attacks; in fact he was hired to replace me, and did replace me after a well-publicized court hearing in which certain irregularities in discovery procedures was brought to light.

A clean break from the Cline era is required in order to begin the process of restoring public trust in the criminal justice system. As was stated in a Washington Post opinion piece “(i)t is hard not to notice that Durham voters will be choosing between a guy that Cline hired, and a guy that she fired – after he helped expose some of her mistakes. And given his platform, it’s certainly safe to say that Garrell would be a break from the past.”

I would begin the process of restoring trust by pledging to meet with attorneys who, acting in good faith, have reasonable concerns about the integrity of a criminal conviction in Durham County, and, if there is a rational basis for their concerns, allow them to review the file maintained in the district attorney’s office. Should they, by means of this process, or otherwise, discover or provide evidence calling into question the legitimacy of the conviction, I would join with them in requesting appropriate actions by the appropriate court. I would assign an assistant district attorney, as part of their duties, to assess cases in which the integrity of the conviction is called into question.

In addition, I would hold monthly open forums in which I would make myself available to any members of the public who have questions or concerns regarding the actions or practices of the District Attorney’s Office.

Q: Last year, the district attorney’s office requested three SBI investigations of deaths involving officers of the Durham Police Department. Will you open to the public the results of any such future investigations into Durham law-enforcement agencies? Why, or why not?

A: The law has specific and established procedures regarding investigations of the actions of local police departments. One of these procedures is that the investigation be undertaken by an outside, independent agency, in almost all cases, the SBI . Some information regarding aspects of such an investigation are under the control of the independent agency. I pledge that I would make myself available to answer questions regarding any such investigation, and would release information regarding the investigation as allowed by law and procedures in effect. The last thing the office of the district attorney needs to do is compromise the integrity of an ongoing investigation.

Q: Please describe one specific event in your legal career that influenced your decision to run for District Attorney.

A: After my unsuccessful run for DA in 2008, I witnessed, and in due time became a casualty of, the actions of former District Attorney Cline. These actions, in which the character and integrity of our Chief Resident Superior Court Judge Orlando Hudson were repeatedly, falsely, and, in time, in violation of court orders, maligned and questioned. This was nothing less than an all-out attack on the integrity of the criminal justice system. When a sitting district attorney effectively calls the senior resident Superior Court judge a rapist and murderer, it is no wonder that citizens might jump to the conclusions many did in the Huerta matter; more devastating however, is the day-to-day loss of trust of all of those who appear in, or closely follow, our court system.

Seeing all of this, it was clear to me that the most powerful antidote to this poisonous atmosphere available to me was to once again run for DA, this time against Roger Echols. Judge Stanback is to be commended for answering the call of Gov. Perdue to assume the office of district attorney in the wake of Cline’s removal. His job was to restore stability to a chaotic situation and he did. This job, perhaps by its nature, did not entail replacing those in the office who had publicly and vocally supported Cline in her ill-fated campaign of character assassination against Judge Hudson. The only way for Durham to begin the process of restoring trust in its criminal justice system is to make a clean break from the past, and it was this that led me to run for DA.

For the first 10 years or so of my career, I would have worked for free had I been able to (as it was, this is not a career that you choose for riches, particularly in the first decade). I got up each morning, generally seven mornings a week, eager to get to work and, as I once heard an older prosecutor say, “put up the State’s case.” While two children, church and community involvement, and important relationships have somewhat altered my focus, I still feel this way today and I would like to be able to inspire that enthusiasm in every ADA in the office.